- The Supreme Court has maintained the constitutional validity of Sections 499 and 500 of the Indian Penal Code which criminalise defamation.
Section 499 defines defamation
Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Section 500 defines Punishment for defamation
- Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Reasoning given by the court
- Court said that the reputation of an individual was an equally important right and stood on the same pedestal as free speech.
- The court said it would be a stretch to say that upholding criminal defamation in modern times would amount to imposition of silence.
- The court held that criminalisation of defamation to protect individual dignity of life and reputation is a “reasonable restriction” on the fundamental right of free speech and expression.
- The right to reputation is a constituent of Article 21 of the Constitution. It is an individual’s fundamental right.
- Court held that deliberate injury to the reputation of an individual is not a mere private wrong, worth only a civil case for damages.
- Instead, it is a “crime” committed against society at large and the State has a duty to redress the hurt caused to its citizen’s dignity.
Analysis of the judgement
- The judgment holds far-reaching implications for political dissent and a free press.
- Existence of criminal defamation on the statute book leads to self-censorship, and that it is often used to stifle legitimate criticism.
- It is true that ‘defamation’ is one of the reasonable restrictions to free speech envisaged in the Constitution, but this is not enough to justify retaining its criminal component.
- In the Indian context, criminal defamation is not generally a dispute between two individuals.
- It is invariably a shield for public servants, political leaders, corporations and institutions against critical scrutiny as well as questions from the media and citizens.
- The protection of reputations is a reasonable goal, in practice, the law is used as a tool for harassment and intimidation.
- By criminalising defamation, the law inflicts the extreme punishment of loss of liberty.
What could have been done?
- The two-judge Bench could have referred the matter to a Constitution Bench.
What should be done?
- Defamation should be decriminalised and it should be reduced to a civil offence.
Why Supreme court ruling on section 499 of IPC might be flawed?
- It held that the right to “reputation” was protected under Article 21 of the Constitution which guarantees “life and personal liberty”. Now, Article 21 only protects the individual’s life and liberty against interference by the state. Supreme Court declared that the right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21. The court never explained how this balancing exercise was to be carried out.
- To have it prevail over free speech — have no basis in either the text or the structure of the Constitution. Instead of using Article 21 as a shield to protect the individual against State persecution or indifference, it used it as a sword to cut down the fundamental right to freedom of speech and expression.